Microsoft specialist made human rights complaint

Can you fire someone for not telling you they have a criminal record and did time for dealing drugs? Australian system integrator Data#3 has just been told the answer to that question is “no”, under some circumstances.

As a report (PDF) on this case explains, in late December 2014, Data#3 hired a chap known only as “Mr. AW” as a Microsoft Solution Specialist on the pleasing salary of AU$185,000. But in mid-January 2015 Data#3 learned that Mr AW had a conviction in New Zealand for selling Ecstasy and had served a year-long home detention as a result.

AW says he specifically asked Data#3's interviewers if he needed to pass a criminal record check and claims he was told it was not a condition of employment.

But when it learned of his conviction, Data#3 fired AW, arguing that as the company's culture requires employees to demonstrate the highest ethical standards the lack of integrity demonstrated by his non-disclosure showed he was a bad fit for the company. This all happened during a probation period, when the integrator's contract gave it the right to fire with a week's notice for any reason.

AW didn't like that logic and complained to Australia's Human Rights Commission, a canny legal move because it meant his case would be considered on whether he had been unfairly excluded rather than testing Data#3's employment contract.

Human Rights Commissioner Jillian Triggs' report, to which we have linked above, finds that AW was entirely able to perform the “inherent requirements” of the job and had therefore been discriminated against on the basis of his criminal record. She's therefore ordered Data#3 to pay AU$76,000 in wages and compensation.

Data#3 has refused to do so. And the Human Rights Commission has been ridiculed by the Murdoch Media, which feels it has deliberately politicised other debates in Australia.

Let's leave those local matters alone: what do you think is right here? Commentards, start your keyboards! ®